This is a lecture that I recently gave at the Ministry of Trade in Indonesia to kick off a series of lectures I will perform there over the final months of 2013 on NTBs and what Indonesia can do about them

1. An Introduction to Non-Tariff Barriers
and WTO Rules
Simon Lacey | Last Updated 15 August 2013

2. Outline
 Some definitional issues
 A few words on history
 A reminder of some core WTO principles
 The main rules and agreements governing NTBs
 Some disputes from the past, present and future
 A few NTBs currently affecting Indonesia
 Solving problems arising from NTBs
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3. Definitions
 Non-Tariff Measures (NTMs): generally defined as measures
other than tariffs, which have an effect on trade.
 NTMs generally on the increase, particularly since the GFC
and particularly in handful of medium to large middle-
income countries
 Although NTMs often pursue legitimate policy objectives, if
they are overly trade restrictive, they are considered Non-
Tariff Barriers (NTBs)
 Non-Tariff Barriers (NTBs): defined as selected (non-tariff)
measures that discriminate against foreign products,
directly or indirectly, de jure or de facto, or where trade
restrictiveness, whether or not deliberate, exceeds what is
needed for the measure’s non-trade objectives
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4. Classifying NTMs
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Source: International Trade Center (ITC)
http://www.intracen.org/article/Creating-clarity-out-of-complexity-Defining-obstacles-to-trade/

5. Historical Trends for NTBs
 As tariffs were successfully negotiated downwards after 1947, the
incidence of non-tariff barriers increased in both relative and
absolute terms.
 The accession of Japan to the GATT in 1955 which itself used a
complex system of broadly entrenched and complex behind-the-
border policies to control the domestic market for everything from
autos to photographic film;
 The inventory of NTMs developed under the GATT in the years
between the end of the Kennedy Round and the start of the Tokyo
Round also highlighted the importance that NTBs had assumed as
tariffs had been on the decline
 Adoption of a series of plurilaterial “codes” in the Tokyo Round
that later became part of the Single Undertaking in the Uruguay
Round that specifically addressed non-tariff barriers
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6. Some Core WTO Principles
 Non-discrimination
 Transparency
 Predictability
 Proportionality (“no more burdensome than necessary”)
 Regulations must be necessary to achieve a legitimate
policy objective
 Regulations must not be applied in just a manner as to be
disguised barriers to trade or unnecessarily restrictive of
trade
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7. WTO Rules on NTBs Specifically
 GATT Article III (National Treatment)
 GATT Article VI and the Anti-dumping Agreement
 GATT Article VI and the Agreement on Subsidies and
Countervailing Measures
 GATT Article VII and the Customs Valuation Agreement
 GATT Article XI General Elimination of Quantitative
Restrictions
 GATT Article XII (Balance of Payments Restrictions)
 GATT Article XVII (State Trading Enterprises)
 TBT Agreement
 SPS Agreement
 WTO Agreement on Pre-shipment Inspection
 WTO Agreement on Rules of Origin
 WTO Agreement on Import Licensing Procedures
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8. WTO Dispute Settlement and NTBs
 Because tariffs have ceased to be the main obstacle to trade, and
because any controversies in terms of the legal interpretation of
Members’ tariff obligations have long since been settled (in the
early years of the GATT mostly), dispute settlement at the WTO
(involving trade in goods) has predominantly concerned NTBs.
 Some examples of major cases that concerned NTBs:
• US – Gasoline (DS 2)
• EC – Bananas (DS 27)
• EC – Hormones (DS 26)
• Japan – Film (DS 44)
• US – Shrimp (DS 58)
• US – Cool (DS 384,386)
• US – Clove Cigarettes (DS 406)
• Indonesia - Horticultural Products (DS 455)
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9. Some NTBs Affecting Indonesia
Palm oil exports to the US being
potentially negatively impacted by
pending rule-making by the EPA
This is a NTB and market access issue involving
the legal interpretation of what constitutes a
technical barrier to trade, as well as of various
non-discrimination obligations.
The European Renewable Energy
Directive
This is a NTB and market access involving the
legal interpretation of WTO commitments and
obligations under the GATT, and the TBT
Agreement.
Plain-packaging tobacco products in
Australia and New Zealand
This is potentially is a non-tariff barrier in the
form of a denial of trademark protection.
Salak exports to China are being
obstructed domestic regulations on
permitted cadmium levels
This is a non-tariff barrier and market access
issue involving the legal interpretation of the
domestic regulation's compatibility with the WTO
SPS Agreement
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10. Solving Problems with NTBs
Three ways to solve concerns arising from the
imposition of NTMs:
Raising concerns at the WTO technical committees
Enforcing rights through the WTO dispute settlement
mechanisms; and/or
Through trade negotiations.
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11. Solving trade concerns arising
from NTMs (cont.)
 WTO technical committees provide a forum for the solution of
concerns arising from the imposition of NTMs. Example: TBT
Committee and SPS Committee, for NTMs enacted as technical
regulations and SPS measures, respectively.
 Some data on the issues raised before the TBT Committee as
STCs
- 365 so-called Specific Trade Concerns (STCs) were raised before the
TBT Committee from 1995 to 2012. 94 were raised in 2012 alone;
- The most commonly-stated objectives of the measures under
discussions are: health and safety, and environment protection;
- WTO Members maintaining most of the measures discussed at the
Committee are the EU, China and the US.
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12. Solving trade concerns arising
from NTMs (cont.)
Some data on the issues raised before the SPS
Committee:

344 STCs were raised in the SPS Committee meetings from 1995 to
2012. 16 were raised in 2012 alone;

The stated objectives include food safety (30%), plant health (24%),
animal health and zoonoses (40%) or other issues, such as certification
requirements (6%);

WTO Members raising STCs include: developing country WTO Members
(89 STCs); developed country WTO Members (212 STCs); and LDC WTO
Members (5 STCs); and

In many occasions, STCs are supported by more than one WTO Member.
In these instances, the measure under discussion was maintained by: a
developed country Member in 202 cases; developing country Member in
178 cases; and an LDC Member in 1 case
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13. Solving trade concerns arising
from NTMs (cont.)

WTO/ASEAN/bilateral dispute settlement mechanisms:
established to settle commercial disputes and seek redress of
the alleged violations of countries’ rights under
WTO/ASEAN/bilateral trade agreements.

Binding nature of the dispute settlement mechanism as a
necessary element to ensure enforceability of the rights (and
predictability of commercial concessions).

Trade negotiations: possible forum to solve trade concerns
arising from the imposition of NTMs. Examples: WTO DDA
Round; EU-Indonesia FTA.
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14. Solving trade concerns arising
from NTMs (cont.)

A key tool to monitor and assess NTMs: transparency
requirements, which include publication of the measures and
notification. WTO and ASEAN rules are clear and call for the
establishment of effective instruments to achieve transparency:
enquiry points, notification authorities, ATR, NTRs, etc.

It is critical to make use of these instruments. Coordination with
domestic businesses, traders and trade associations must be
enhanced and built into national schemes.

Dont forget the power and support that can be received from
your “allies” in the importing countries.
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15. Want to know more?
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